Hunton Employment & Labor Perspectives

Earlier today the D.C. Circuit issued its decision in Noel Canning, v. NLRB finding that President Obama’s January 4, 2012 recess appointments of NLRB members Griffin, Block and Flynn (who has since resigned) were unconstitutional.  The Court therefore concluded that the Board lacked the required quorum needed to conduct business and therefore that its ruling on the merits of the case was void.  In reaching this determination, the Court interpreted the meaning of “recess” within the Appointments Clause, finding that it referred only to intersession recesses – that is, the recess that occurs between annual Senate sessions – and not to intrasession recesses – those that occur during an ongoing Senate session (like a summer break).  The Court ruled that because President Obama’s appointments of Board members Richard Griffin, Sharon Block and Terence Flynn occurred during a break that could only be viewed as an intrasession recess, they were unlawful.  The Court rejected the Board’s interpretation of the term “recess,” including its argument that the President was entitled to determine for himself whether a Senate adjournment constitutes a recess. 

This ruling could have a significant impact in the labor relations arena, because it potentially implicates numerous decisions issued by the Board since the President’s recess appointments were made.  In addition, challenges to these appointments remain pending before at least the Third, Fourth and Seventh Circuits.  The D.C. Circuit’s ruling is expected to be a first in a series of Appellate Court rulings.